Because a bid to make a Constitutional amendment defining marriage in Pennsylvania as a relationship between a man and woman failed in 2008, the only legal obstacle to gay marriage in Pennsylvania is the state’s version of the Defense of Marriage Act.
This fact looms large as the Supreme Court weighs the constitutionality of the federal Defense of Marriage Act. On Tuesday the court heard arguments focused on Proposition 8, a California law that limited marriage to heterosexual couples.
“It’s much easier to revoke the law than if it were ensconced into the state Constitution itself. I guess it should be noted that the failure to pass a constitutional amendment, along with the trends in surveys across the state, do have some political insight into the changing attitudes about marriage equality in Pennsylvania,” said David Rosenblum, legal director for the Mazzoni Center, a clinic in Philadelphia that focuses on health care for the gay community.
Those changing attitudes may not directly influence the Supreme Court justices, but they could play a role in the political future of same-sex marriages in the Keystone State.
Legislation to repeal the Pennsylvania Defense of Marriage Act and permit same-sex marriages in Pennsylvania was introduced in the state Senate last week. The Legislature passed the Defense of Marriage Act in 1996, expressly prohibiting the issuing of marriage licenses to same-sex couples or the recognition of same-sex marriages performed in other jurisdictions.
A Franklin and Marshall poll released last month found that 52 percent of Pennsylvanians surveyed said they support gay marriage, while 34 percent said they strongly oppose legalizing same-sex marriages.
Those results are the exact opposite of where public opinion stood in the same poll seven years ago. In 2006, the Franklin and Marshall poll found that 50 percent of those surveyed said they strongly opposed gay marriage and 33 percent said they supported legalized marriage for same-sex couples.
Observers on both sides of the issue said it appears unlikely that the Supreme Court will hand down a decision that will directly impact Pennsylvania’s prohibition against same-sex marriages. But as laws barring homosexual couples from marrying are attacked in the courts, there is the chance that same-sex marriage could be determined to be a right that should be granted across the nation.
Rosenblum said there is “a very slim possibility” the Supreme Court could rule there is a fundamental right to marriage for same-sex couples that would then define law for all states.
“Based on my assessment of the oral argument, this is not at all likely to be a result,” Rosenblum said. “This is actually not surprising, given the fact that the court does not generally like to be ahead of the curve on social issues such as this. Instead, they like to allow the states to serve as individual laboratories to work out these matters individually.”
Thomas Shaheen, vice president for policy at the Pennsylvania Family Institute, one of the most prominent advocacy groups defending the concept of traditional marriage in the Commonwealth, said that over the years government has recognized that marriage “benefits society in a unique way.”
“This has been rightly treated by the courts as what’s known as a ‘rational basis’ for its marriage law,” Shaheen said. “If the court rules that there is no rational basis for one man, one woman marriage, our state’s (Defense of Marriage Act) could be overturned.”
The Pennsylvania Family Institute was among more than 30 organizations that joined to submit a legal brief arguing in favor of California’s Proposition 8.
The bid to have a marriage defined in the state constitution was likely spoiled because anti-gay marriage lobbyists pushed too hard to get language inserted in the legislation that would have barred civil unions as well as marriage, said state Sen. John Gordner, R-Columbia County, who was one of the co-sponsors of the Legislation.
“Advocates in favor of preserving marriage as a union between a man and woman made a strategic mistake,” Gordner said. Legislation that would have stopped at defining marriage would likely have passed the Legislature and then been put to a vote of the Pennsylvania people.
“But because of the dispute over civil unions the legislation got bogged down ... In the years since, two other attempts to revive the constitutional amendment defining marriage as a union between a man and woman have not made it to the full Senate for votes.”